Initiating what could be a years-long project to undo Trump-era protections for college sexual assault victims and the accused, the Biden administration on Tuesday launched its audit of Education Department policies outlining how universities handle sexual misconduct investigations.
The Department of Education's Office for Civil Rights announced it would begin a "comprehensive review" of Title IX rules that prescribe how university administrators deal with sexual misconduct cases. In a letter to students and educators, the office requested input on the department’s Title IX regulations—specifically, the August 2020 rule changes implemented under former education secretary Betsy DeVos.
Tuesday’s announcement follows President Joe Biden’s March 8 executive order on sex and gender discrimination, which asked the department to undertake a complete review of Title IX policies. The department’s letter marks the first step toward dismantling DeVos’s rules—a process that could take months or even years through the notice and comment rulemaking process, as outlined by federal policies.
"Today's action is the first step in making sure that the Title IX regulations are effective and are fostering safe learning environments for our students while implementing fair processes," Education Secretary Miguel Cardona said in a statement. "Sexual harassment and other forms of sex discrimination, including in extracurricular activities and other educational settings, threaten access to education for students of all ages."
President Joe Biden pledged to bring a "quick end" to DeVos's Title IX rules during his campaign and faced pressure from progressive legal organizations to do so. DeVos's changes drew ire from feminist activists because they allowed students accused of sexual misconduct to cross-examine their accusers through a third-party representative. The August 2020 changes also delegated misconduct cases that occurred off-campus to local authorities.
In addition to due process protections, DeVos established the first federally mandated protections for sexual assault victims on college campuses. University administrators are required to provide victims with necessary support—for example, allowing the student to change his or her class schedule and providing the victim with a chaperone.
The Biden administration on Tuesday began what could be a lengthy procedure to unravel DeVos's rules. The Trump-era guidance replaced the Obama administration's "Dear Colleague" letters, which provided a framework for university administrators to handle sexual misconduct cases. Unlike the Obama administration's directions, the DeVos rules were added to federal law through a rulemaking procedure called the Administrative Procedures Act—a process that took nearly two years.
Those regulations could take just as long to undo. The civil rights office must respond to each public comment, as they requested in their letter. Secretary DeVos's civil rights office received more than 124,000 separate comments during their 2018 Title IX review, which took 18 months to resolve.
Candice Jackson, a counsel in DeVos’s Office for Civil Rights, insisted that universities must continue to address sexual misconduct as outlined by federal law while the department proceeds with their investigation.
"[The Office for Civil Rights] should be applauded for initiating a review process that centers around public input," Jackson, one of the architects behind the 2020 Title IX changes, told the Washington Free Beacon. "In the meantime, the current 2020 regulations continue to provide schools with clear, legally binding obligations that take sexual harassment seriously, promote educational access, and respect the constitutional rights of all students and faculty."
Progressive legal groups pressured the Biden administration to act on the DeVos Title IX rules. Public Justice and the National Center for Youth Law filed a lawsuit in California last month on behalf of the Berkeley High School Women's Student Union. The plaintiffs claim the DeVos regulations made it more challenging for schools to investigate sexual misconduct cases and therefore caused an uptick in sexual assaults.
The suit asked for a preliminary injunction that, if granted, would have suspended the Education Department’s enforcement of DeVos's Title IX rules.
The Office of Civil Rights will conduct a hearing in the coming weeks to give the public additional opportunities to comment, after which the department expects to release a proposed rulemaking notice.